Your Spouse Has the “Privilege” to Remain Silent

Under spousal privilege laws, one spouse cannot be forced to give evidence or testify against the other spouse in a legal proceeding or court trial. However, there are several exceptions and conditions.

Understanding Spousal Privilege

State and federal laws grant special “privileges” to protect individuals in certain relationships. These include doctor-patient privileges, attorney-client privileges, and spousal privileges. Under the law, a privilege is an exception to the general rule that no one may refuse to give evidence or testimony in a legal proceeding. This rule is meant to ensure a fair trial for all individuals based on available evidence.

The Fifth Amendment allows individuals the constitutional right to refuse to give evidence or testify against themselves in a legal proceeding or court trial. A privilege is not a constitutional right, but it does allow individuals in certain confidential relationships the right to refuse to give evidence or testify against the other person in that relationship, with several exceptions. Laws allow spousal privilege to protect marital relationships from the harm of one spouse testifying against the other spouse. However, the law attempts to balance potential harm with the need to gain important evidence that may significantly impact a trial verdict.

Federal courts and many state courts recognize two types of spousal privilege:

  • Marital Communications Privilege – bars testimony related to confidential communications between spouses
  • Spousal Testimony Privilege – bars testimony against a spouse in a criminal trial

Marital Communications Privilege

Under the marital communications privilege, spouses cannot be forced to testify about confidential, private communications between them in a civil or criminal proceeding. Under this privilege, spouses must have been legally married at the time the confidential communication occurred.

This privilege applies “only to communications between spouses.” It does not apply to the conduct, observations, or overheard conversations between two spouses. If one spouse observes the other committing an illegal act or overhears incriminating evidence with a third party, the marital communication privilege does not apply and a spouse may be compelled to testify.

The marital communications privilege may not be asserted if: (1) one spouse is involved in a competency proceeding against the other; (2) one spouse has initiated a criminal proceeding against the other; (3) spouses are suing each other in a civil case; (4) the defendant spouse wishes to testify in his/her own defense in a criminal trial; or (5) the confidential communication was made to intentionally commit a crime. These five conditions also apply to spousal testimony privilege.

Spousal Testimony Privilege

Under the spousal testimony privilege, one spouse cannot be forced to testify against the other spouse who is subject to a grand jury proceeding or is a defendant in a criminal trial. Either spouse may assert this privilege, but they must be in a valid marriage at the time the privilege is asserted. If the spouses are not in a legal marriage or the marriage ends, the court can compel testimony related to the defendant.

If any of the following conditions exist, spousal testimony privilege may be denied:

  • One spouse is charged with a crime against the other spouse
  • One spouse is charged with a crime against a child of either spouse
  • One spouse is charged with a crime against a third party
  • One spouse is charged with prostitution or human trafficking
  • One spouse is asked to testify about matters that pre-date the marriage

If one spouse is charged with a violent criminal act, an assault attorney can explain the specifics of spousal testimony privilege.

Minnesota Privilege Laws

Minnesota is recognized as one of the states that strictly enforces two distinct spousal privileges: the privilege to prevent a spouse from testifying at any time concerning confidential inter-spousal communications made during the marriage; and the privilege to prevent a spouse from testifying against the other during the marriage.

According to the Minnesota Supreme Court, placing a person under oath to testify against his/her spouse weakens the marital structure and causes strife between the marital parties that may warrant divorce.

Most states that recognize marital privilege laws require spouses to be in a valid marriage to assert these privileges. However, the Minnesota Supreme Court has never ruled that marriage was unworthy of protection by the marital privilege, even if the validity of the marriage was questionable.

Minnesota law continues to recognize and protect spousal privilege laws, however, many spouses never assert their privileges, even through an assault attorney in a criminal case. In Minnesota and all other states, spousal privileges must be properly asserted or they may be waived by the court. A spouse may lose the right to assert his/her spousal privilege by failing to object to the other spouse’s testimony, disclosing a confidential spousal communication to a third party, or offering testimony through a third-party witness. In criminal cases, an assault attorney-client privilege applies.

He has won jury trial cases in misdemeanor and felony cases and in DWI’s and non-DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. He is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

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